Chavez v. Mendoza-Powers

Filing 31

ORDER DECLINING Issuance of Certificate of Appealability; ORDER DIRECTING Clerk of Court to Serve Copy of Order on Ninth Circuit Court of Appeals signed by Chief Judge Anthony W. Ishii on 6/25/2010. (Bradley, A)

1 2 3 4 5 6 7 8 ROGER ERNEST CHAVEZ, 9 Petitioner, 10 v. 11 K. MENDOZA-POWERS, Warden, 12 Respondent. 13 14 Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. 16 On June 8, 2009, the undersigned issued an order dismissing the petition for violating the 17 statute of limitations. Petitioner filed a notice of appeal and the appeal was processed to the Ninth 18 Circuit Court of Appeals. On June 16, 2010, the Ninth Circuit remanded the case to this Court for 19 20 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 21 district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller22 El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 23 a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) 1:08-CV-01559 AWI SMS HC Appeal No. 09-16344 ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY ORDER DIRECTING CLERK OF COURT TO SERVE COPY OF ORDER ON NINTH CIRCUIT COURT OF APPEALS

the limited purpose of granting or denying a certificate of appealability.1

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court
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A certificate of appealability was not issued before the appeal was processed in the first instance because none was r e q u ir e d under Ninth Circuit precedent at the time. See W h ite v. Lambert, 370 F.3d 1002, 1004 (9 th Cir.2004); Rosas v. N ie ls e n , 428 F.3d 1229, 1231-32 (9th Cir.2005) (per curiam) (no requirement for prisoners to obtain certificate of a p p e a la b ility to review denial of habeas petition challenging administrative decision).

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of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from­ (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Reasonable jurists would not disagree with the court's finding that the petition violated 28 U.S.C. § 2244(d)'s one year statute of limiations. Accordingly, the Court hereby DECLINES to issue a certificate of appealability. The Clerk of Court is DIRECTED to serve a copy of this order on the Ninth Circuit Court of Appeals. IT IS SO ORDERED. Dated: 0m8i78 June 25, 2010 CHIEF UNITED STATES DISTRICT JUDGE

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